Labour & European Law Review Weekly Issue 406 11 February 2015
To succeed in a disability discrimination claim, complainants have to show that their disability has a substantial, long-term adverse effect on their ability to carry out normal day-to-day activities. In Saad v University Hospital Southampton NHS Trust, the Employment Appeal Tribunal (EAT) considered the extent to which the tribunal had assessed the effect of the impairment on the work environment when determining if the claimant had a disability.
Mr Saad, a specialist registrar in cardiothoracic surgery, was employed by University Hospital Southampton NHS Trust on a series of fixed term contracts, the last of which expired on 20 September 2012.
He lodged a tribunal claim, arguing that he was disabled on the ground that he suffered from depression and anxiety which constituted an impairment within the meaning of the Equality Act. Specifically, he claimed he became tense and anxious if he was near work or saw work colleagues and could not speak to them on the telephone. This reached the stage where he was totally confined to his flat and could not even go out shopping or for walks.
Section 6(9) of the Equality Act 2010 states that a person has a disability if the impairment (which can be physical or mental) has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.
“Long-term effect” is defined in paragraphs 2(1) and (2) of the schedule to the Act as having lasted or likely to last for at least 12 months, or for the rest of the person’s life.
Although the tribunal accepted that Mr Saad suffered from a depressive and general anxiety disorder, it held that the effect of impairment was neither substantial nor long-term.
This was because Mr Saad’s evidence lacked detail as to when and how often the alleged adverse effects occurred. Furthermore under cross examination his evidence "substantially contradicted" the description he had given of the difficulties caused by his depression. In particular, he was able to use his telephone and go out outside to take exercise and go shopping. He had travelled abroad on three occasions and was able to look after himself when his wife was away.
Mr Saad appealed, arguing that the tribunal failed to consider the effect of the impairment on his ability to communicate with colleagues, to attend his place of work and to concentrate. In addition, he argued that the tribunal misdirected itself as to the meaning of "long-term" in section 6 of the Act in that it failed to have regard to the fact that effects may be long-term even though they fluctuate.
The EAT held that, on the facts, the tribunal was entitled to reach the conclusion that it did about the effects of Mr Saad’s anxiety disorder on his workplace-related activities and in particular, his argument that he could not concentrate to read medical textbooks. Looking at the overall evidence, the tribunal was satisfied that any effect on his concentration was not substantial.
Nor did the tribunal misdirect itself as to the meaning of “long-term” in section 6. In particular it did not conclude that the adverse effects he suffered were not capable of being long-term because they fluctuated; but rather that the effects of his impairment were not substantial. The tribunal did not consider and therefore did not misinterpret the requirement that any substantial effects had to be long-term.
In this case the EAT took into account the overall evidence when considering the effect on normal day to day activities including where this may contradict evidence of the effect of an impairment on work activities.